Judges: ELIOT SPITZER, Attorney General
Filed Date: 12/11/2002
Status: Precedential
Modified Date: 7/5/2016
Hon. Brian J. Wing Formal Opinion Commissioner, New York State No. 2002-F4 Office of Temporary and Disability Assistance 40 North Pearl Street Albany, N.Y. 12243
Dear Commissioner Wing:
Your Deputy General Counsel has inquired whether the Office of Temporary and Disability Assistance (OTDA) is authorized to reimburse one of its hearing officers for legal fees incurred in responding to a complaint filed with the Disciplinary Committee of the New York State Supreme Court, Appellate Division, First Department. In responding to the complaint, the hearing officer hired a private attorney.1
In a telephone conversation between a member of our staff and Russell Hanks, OTDA Deputy General Counsel for the Office of Administrative Hearings, to clarify his request for an opinion, Mr. Hanks indicated that hearing officers for the OTDA are currently all employees, as opposed to independent contractors.
Sections
the [S]tate shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties . . . . This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the [S]tate.
§ 17(2)(a). Section 17(3)(a) provides for indemnification in the amount of any judgment obtained against the employee in any state or federal court or in the amount of any settlement of a claim, if the act or omission from which the judgment or settlement arose occurred while the employee was acting within the scope of his employment and not from the employee's intentional wrongdoing.
Section
By its express terms, section 17 does not authorize reimbursement of fees incurred responding to a disciplinary complaint. The initial investigation of the complaint by the Disciplinary Committee for the Appellate Division, First Department did not constitute a "civil . . . proceeding in any state . . . court," Public Officers Law §
Likewise, while section 19 provides for reimbursement of defense costs in "any criminal proceeding in a state or federal court" or in connection with an appearance before a grand jury,id., § 19(2)(a), a disciplinary proceeding is not a criminal proceeding, nor does it involve a grand jury.
Furthermore, we are not aware of any case law interpreting sections 17 and 19 as extending to authorizing reimbursement of fees incurred by an employee in defending himself in a disciplinary proceeding. In a prior opinion, we found that these same statutes provided no authorization for the Department of Transportation to reimburse an employee for legal fees incurred in another type of administrative proceeding, specifically a hearing before the Department of Motor Vehicles to determine the right of the employee to retain his driver's license. See Op. Atty. Gen. No. 97-F9 (1997).
We conclude that Public Officers Law sections
Very truly yours,
ELIOT SPITZER, Attorney General